Patent Trolls Still Can’t Find A Way Through Alice’s Looking Glass

17Jan2017

Patent Trolls Still Can’t Find A Way Through Alice’s Looking Glass

We (and others) have written frequently and at length about the impact of Alice v. CLS Bank on patent litigation—how the test set out in that case has enabled litigants and courts to obtain an early determination of whether a patent claims a viable invention or just an abstract idea. Parties who assert patents in litigation—especially patent trolls—have been predictably upset with the impact of Alice, seeking ways to minimize its effectiveness—thus far, without success. The Supreme Court has declined every invitation to revisit Alice. But the frequency of those invitations says something about the far–reaching impact of the case in leveling the playing field of patent litigation.

In a recent round–up of patent cases at the Supreme Court, Patently O highlights the latest effort to undermine Alice, a petition asking the Supreme Court to take up the question whether a court can determine whether a patent claims an abstract idea based only on the patent itself and attorney argument. Given that the Supreme Court has not been tempted to revisit Alice and that the Alice issue is a purely legal issue, the proposal of the petitioner, IPLearn–Focus, appears unlikely to succeed. But the intent to undo Alice is clear. The premise of the petition is that courts should not be permitted to resolve the Alice issue through an early–filed motion to dismiss, but only after extensive and expensive discovery has been conducted. That would mean a return to the bad old days when a judgment of invalidity could only realistically be obtained just before trial—that is, after a host of expenses had already been incurred by the defendant, increasing the pressure to settle and the likelihood of settlement. The appeal to the patent troll of a system in which defendants can escape from a lawsuit only after incurring massive costs is self–evident.

Although this effort looks to be a long–shot, we can expect further attempts by patent–asserters to flip Alice on her head as the impact of this game–changing case continues to be felt.